* District Judge of the Northern District of Texas,

sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

September 22, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-41260

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIPE de JESUS DOMINGUEZ-OCHOA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before BARKSDALE and PICKERING, Circuit Judges, and LYNN,

District Judge *

.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is whet h er, for Sentencing Guidelines

purposes, criminally negligent homicide under Texas law is

equivalent to manslaughter and, therefore, an enumerated crime of

violence under Guidelines § 2L1.2, permitting the 16-level

enhancement imposed against Felipe de Jesus Dominguez-Ochoa. See

U.S.S.G. § 2L1.2 cmt. n.1(B)(ii)(II) (2002). Criminally negligent

homicide has a mens rea of negligence; generic, contemporary

manslaughter, of recklessness. Therefore, the two offenses are not2

equivalent. The enhancement is VACATED ; the case is REMANDED for

resentencing.

I.

After a criminal in formation charged Dominguez with murder,

the State moved to reduce the charge. He pleaded guilty in April

2002 to criminal ly negligent homicide and was sentenced to 14

months’ imprisonment. Dominguez (a Mexican citizen) was released

in November 2002 and deported to Mexico in January 2003.

Within a few days, he was found by Border Patrol Agents near

Alamo, Texas. Dominguez pleaded guilty to being found in the

United States after deportation without having obtained the consent

of the Attorn ey General to reapply for admission. 8 U.S.C. §§

1326(a) and (b).

The presentence investigation report (PSR) recommended a 16-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), taking the

position that Dominguez’ deportation had followed a conviction for

a crime of violence

— the criminally negligent homicide to which he

had pleaded guilty. Dominguez objected to the enhancement,

claiming that offense was not a crime of violence. The district

court overruled the objection and sentenced Dominguez, inter alia

,

to 57 months’ imprisonment.

II.

In addition to contesting the enh ancement, Dominguez claims

the “felony” and “aggravated felony” provisions of 8 U.S.C. §§3

1326(b)(1 ) and (b)(2) are unconstitutional but acknowledges the

issue is foreclosed by Almendarez-Torres v. United States

, 523 U.S.

224, 226-27 (1998). The issue is raised only to preserve it for

possible review by the Supreme Court.

Accordi n gly, the remaining issue to address concerns the

enhancement. For that issue, the district court’s guidelines

interpretation is reviewed de novo ; its factual findings, only for

clear error. E .g., United States v. Washington

, 340 F.3d 222, 231

(5th Cir.), cert. denied , 124 S. Ct. 942 (2003).

Section 2L1.2’s commentary d efines a “crime of violence” in

two ways (subparts I and II). It

(I) means an offense under federal, state, or

local law that has as an element the use,

attempted use, or threatened use of physical

force against the person of another; and

(II) includes murder, manslaughter

, kidnapping, aggravated assault, fo rcible sex

offenses (including sexual abuse of a minor),

robbery, arson, extortion, extortionate

extension of credit, and burglary of a

dwelling.

U.S.S.G. § 2L1. 2 cmt. n.1(B)(ii)(I) and (II) (emphasis added).

Te x as criminally negligent homicide occurs when a person

“causes the death o f an individual by criminal negligence”. T EX

.

P EN

. C ODE § 19.05. “Criminal negligence” is defined by statute.

A person acts with criminal negligence, or is

criminally negligent, with respect to

circumstances surrounding his conduct or the

result of his conduct when he ought to be

aware of a substantial and unjustifiable risk

that the circumstances exist or the result4 will occur. The risk must be of such a nature

and degree that the failure t o perceive it

constitutes a gross deviation from the

standard of care that an ordinary person would

exercise under all the circumstances as viewed

from the actor’s standpoint.

T EX

. P EN

. C ODE § 6.03(d) (emphasis added).

Dominguez contends Texas criminally negligent homicide is not

a § 2L1.2 crime of violence. He maintains: concerning subpart

(I), and as he urged in district court, it does not include as an

element the intentional “use, attempted use, or threatened use” of

force; and, concerning subpart (II), it is not one of the

enumerated offenses.

The district court appears to have considered the underlying

facts of Dominguez’ criminally neg ligent homicide conviction in

concluding that the offense was a crime of violence under subpart

(I). Several months after Dominguez was sentenced, however, our

court decided United States v. Vargus-Duran

, 356 F.3d 598 (5th Cir.

2004) ( en banc ) (use of forc e required for 16-level enhancement

under subpart (I) must be intentional). In the light of that

decision, the Government does not claim criminally negligent

homicide is a crime of violence under subpart (I).

Instead, it claims the enhancement was proper under subpart

( II): Texas criminally negligent homicide is equivalent to the

enumerated crime of “manslaughter”. S ee U.S.S.G. § 2L1.2 cmt.

n.1(B)(ii)(II). Our court may uphold the district court’s ruling

on any basis presented in district court and established by the5

re cord. S ee, e.g., United States v. Flores

, 135 F.3d 1000, 1002

(5th Cir.) (may affirm on any ground urged in district court),

cert. denied

, 525 U.S. 1091 (1998). Although the Government did

not specifi cally contend at sentencing that criminally negligent

homicide was a crime of violence under subpart (II), the PSR

recommended the 16-level enhancement because “Dominguez was

convicted of criminally negligent homicide, a crime of violence,

pursuant to Commentary Application Note (B)(ii)(I) and ( I I) ”.

(Emphasis added.)

According to the Government, although “criminally negligent

homicide” is not one of subpart (II)’s enumerated crimes of

violence, the offense is the equivalent of the enumerated offense

of manslaughter. Relying principally on Taylor v. United States

,

495 U.S. 575 (1990) (holding “burglary” within the meaning of the

sentence enhancement statute refers to any crime, regardless of its

exact definition or label, having the basic elements of generic,

contemporary burglary), the Government maintains the elemen ts of

Texas cri minally negligent homicide are included in those of

manslaughter.

The parties agree on several points: manslaughter in subpart

(II) includes both voluntary and involuntary manslaughter; only the

elements of involuntary manslaughter are relevant for this

analysis, because voluntary manslaughter and criminally negligent

homicide require different levels of intent; all fo rmulations of6

involuntary manslaughter and Texas criminally negligent homicide

share the element of one person’s causing the death of another;

and, therefore, at issue are the proper mens rea for involuntary

manslaughter and whether it is the same as that for criminally

negligent homicide. Essentially, the Government claims involuntary

manslaughter includes both a “reckless” and “criminally negligent”

mens rea ; Dominguez, that “recklessness” is the only relevant

manslaughter mens rea for this enhancement analysis.

The Texas Penal Code defin es manslaughter a s “recklessly”

causing the death of another, T EX

. P EN

. C ODE § 19.04; on the other

hand, as stated, criminally negligent homic ide is defined as

causing the death of another “by criminal negligence” (“ought to be

aware”), T EX

. P EN

. C ODE § 19.05. For our equivalence analysis,

however, Taylor precludes use of the s pecific definition of

manslaughter applied by the state of conviction. T aylor

, 495 U.S.

at 590-91.

Relying on Taylor

, the Government describ es at length the

common law history of manslaught er and its inclusion of various

forms of mens rea

, including crimina l negligence. S ee United

States v. Browner

, 889 F.2d 549, 551-53 (1989)(same). As T aylor

demonstrates with respect to burglary, however, the common law is

not the source for defining the enumerated offense of manslaughter

for this sentence enhancement analysis.7 The problem with [looki ng to the common law]

is that the contemporary understanding of

“burglary” ha s diverged a long way from its

commonlaw roots.... The arcane distinctions

embedded in the common-law definition have

little relevance to modern law enforcement

concerns.... In the absence of any specific

indication that Congress meant to incorporate

the common-law meaning of burglary, we shall

not read into the stat u te a definition of

“burglary” so obviously ill suited to its

purposes.

Taylor

, 495 U.S. at 593-94; see Browner

, 889 F.2d at 551-53.

Taylor instructs that where, as here, the enhancement provision

does not specifically define the enumerated offense, we must define

it according to its “generic, contemporary meaning”, 495 U.S. at

598, and should rely on a uniform definition, regardless of the

“labels employed by the various States’ criminal codes ”, id . at

592. After observing that the enhancement statute did not define

burglary, Taylor looked to other sources of authority (the Model

Penal Code and W. LaFave & A. Scott, S UBSTANTIVE C RIMINAL L AW (1986))

in order to determine its generic meaning.

A.

As discussed, § 2L1.1 does not define manslaughte r (or

involuntary manslaughter). Likewise, elsewhere in the guidelines,

§ 2A1.4, entitled “Involuntary Manslaughter”, does not define the

offense. Section 2A1.4 concerns, i nter alia

, the federal crime of

manslaughter, 18 U.S.C. § 1112, discussed infra

, when it is

involuntary

, as defined in § 11 12. Although § 2A1.4 does n ot8

define in voluntary manslaughter, it does provide different base

offense levels for different types of mens rea : 10, if the conduct

was “criminally negligent”; 14, if it was “reckless”. U.S.S.G. §

2A1.4(a)(1) and (2) (emphasis omitted). The Government claims this

implies that, for enhancement purposes under § 2L1.1, the

Sentencing Commission considered criminal negligence a sufficient

mens rea for an involuntary manslaughter conviction.

Indeed, consistent with § 2A1.4’s different base offens e

levels for criminally negligent and reckless conduct, that

section’s commentary defines criminally negligent conduct as

involving “a gross deviation from the standard of care that a

reasonable person would exercise under the circumstances, but which

is not reckless ”. U.S.S.G. § 2A1.4 cmt. 2 (emphasis added). This

is similar to the Texas definition of criminal negligence: when a

person “ ought to be aware

... of a substantial and unjustifiable

risk”, which “must be of such a nature and degree that the failure

to perceive it constitutes a gross deviation from the standard of

care that an ordinary pers on would exercise under all the

circumstances as viewed from the actor’s standpoint”. T E X

. P EN

. C ODE

§ 6.03(d) (emphasis added).

We reject this transfer of § 2A1.4 to § 2L1.2 for enhancement

purposes under subpart (II). The guidelines’ “principal purpose”

is to “establish sentencing policies and practices for the federal

criminal justice system”. U.S.S.G. Ch.1 Pt.A n.1. Toward that9

end, the Sentencing Commission “drafted the initial guidelines with

c onsiderable caution[, after] examin[ing] the many hundreds of

criminal statutes in the United States Code”. U.S.S.G. Ch.1 Pt.A

n.5. The guidelines’ base offense levels for various offenses

reflect the requirements of those federal statutes, see, e.g., 18

U.S.C. § 1112 and 10 U.S.C. § 919(b), discussed infra , as well as

many state offenses that come into play for sentence enhancements;

they are not an attempt to define a generic offense or to provide,

per se , an implied definition for cross-reference to other

guidelines’ sections. Rather, the Sentencing Commission attempted

to be responsive to the federal and state offenses and provide,

inter alia

, offense levels appropr iate for diverse federal and

state offenses. As discussed i nfra

, a minority of States employ a

criminally negligent mens rea for involunta r y manslaughter; a

larger number, one of recklessness.

Although Guidelines § 2A1.4(a)(1) provides a bas e offense

level of 10 if co nduct causing involuntary manslaughter was

“criminally negligent”, and is consistent with the minority form of

the offense in some States, the purpose of this guidelines section

is to provide base offense levels for federal offenses against the

person, not to define those offenses. Indeed, none of the various

offenses against the person are defined by § 2 A1, but all are

provided a base offense level. S ee U.S.S.G. §§ 2A1.1 (43 for first

degree murder); 2A1.2 (33 for second degree murder); 2A1.3 (25 for10

voluntary manslaughter); 2A1.4 (involuntary manslaughter: 10 for

criminally negligent conduct; 14 for reckless conduc t). Again,

none of these offenses is defined.

Obviously, the Sentencing Commission is aware of involuntary

manslaughter. Had it desired to do so, it would have incorporated

§ 2A1.4 for the e numerated manslaughter offense in subpart (II).

Under these circumstances, cross-referencing guidelines sections

does not provide the answer. S ee United States v. Sarmiento-Funes

,

374 F.3d 336 (5th Cir. 2004). In S armiento

, the Government claimed

“sexual assault” under Missouri law was a crime o f violence,

asserting it was equivalent to subpart (II)’s enumerated offense of

“forcible sex offenses”. The Government noted that the commentary

to Guid elines § 2A3.1 (“Criminal Sexual Abuse”) states: “Sexual

offenses addressed in this section are crimes of violence”.

U.S.S.G. § 2A3.1 cmt. bkgrd. (emphasis omitted). I d

. at 343. When

that guideline was promulgated in 1987, there was only one

definition of crime of violence, provided in § 4B1.2; the 1987

comme ntary to that section stated its definition of crime of

violence encompassed, inter alia

, “forcible sex offens es”. I d

.

The Government maintained that sexual abuse crimes (such as sexual

assault under Missouri law) must be forcible sex offenses and,

therefore, crimes of violence. I d

. S armiento rejected this

syllogism:

The government’s argument on this score is

logically faulty. From the propositions (1)11 that certain “sexual abuse crimes” are “crimes

of violence,” and (2) that “forcible sex

offenses” are also “crimes of violence,” it

does not follow that the specified “sexual

abuse crimes” are “forcible sex offenses.”

Sarmiento , 374 F.3d at 343-44.

Similarly, as noted, § 2A1.4 does not define the offense of

involuntary manslaughter; rather, it provides alternative base

offense levels that vary according to different m ens r e a

requirements. This is merely an acknowledgment of different mens

rea requirements in, inter alia

, the federal manslaughter statute,

18 U.S.C. § 1112. But simply because § 2A1.4 includes criminal

negligence as a mens rea for federal involuntary manslaughter, it

does not follow that, for enhancement purposes concerning a state

offense, subpart (II)’s enumerated offense of manslau ghter must

also include a negligence mens rea

.

B.

Because the guidelines do not define manslaughter (or

involuntary manslaughter) for sub part (II) purposes, we must

examine other authorities to determine its gene ric, contemporary

definition. T aylor

, 495 U.S. at 598-99. These authorities

demonstrate the requisite generic, contemporary definition utilizes

a reckless, but not criminally negligent, mens rea

.

For involuntary manslaught er, the Model Penal Code requires

consciousness of risk:12 Under the Model Penal Code, liability for

manslaughter cannot be premised on negligence

. Statutes derived from the common law classify

unintentional homicide as involuntary

manslaughter without any attempt to

distinguish conscious disregard of homicidal

risk from inadvertent risk creation. This

failure to differentiate across a broad

spectrum of culpability raises serious grading

difficulties. On the one hand, involuntary

manslaughter may be graded as its voluntary

counterpart, in which case disproportionately

severe sanctions are assigned to conduct that

is merely negligent. On the other hand,

reduced penalties may be authorized for

involuntary manslaughter, in which case

persons guilty of serious wrongdoing benefit

from formal categorization with less culpable

homicides. S ection 210.3(1)(a) refines the

traditional definition of manslaughter by

demanding proof of conscious disregard of

perceived homicidal risk.... Negligent

homicide is relegated to a separate provision

carrying lesser sanctions

.

M ODEL P E NAL C ODE § 210.3 cmt. 4 at 53 (emphasis added). The Model

Penal Code defines r ecklessness as a person having consci ous

disregard for a substanti al risk, § 2.02(2)(c); criminal

negligence, as when a person “ should be aware of a substantial and

unjustifiable risk”, § 2.02(2)(d) (emphasis added).

Discussing the offense of criminal negligence, LaFave states:

“The Model Penal Code

... sets forth definitions for the terms

‘recklessness’ and ‘negligence’, and in most recent recodifications

[of state criminal negligence offe nses] the Model Penal Code

approach has been substantially followed”. 1 W. L A F AVE , S UBSTANTIVE

C RIMINAL L AW § 5.4(b) 372-73 (2d ed. 2003). “The modern view,

evidenced by the position taken in most of the recent comprehensive13

criminal codes, is to require for invol untary manslaughter a

consciousness of risk

— i.e., ‘ recklessness ,’ as does t he Model

Penal Code.” 2 L A F AVE , § 15.4(a) 523 (emphasis added).

Two federal manslau ghter statutes fail to provide a precise

definition for the requisite mens rea

. Under the earlier-cited 18

U.S.C. § 1112 (voluntary and involuntary manslaughter), involuntary

manslaughter is defined as “the unlawful killing of a human being

without malice”, either “[i]n the commission of an unlawful act not

amounting to a felon y, or”, i nter alia

, in the commission of a

lawful act but “without due caution and circumspection”. 18 U.S.C.

§ 1112(a). This has been interpreted as adopting the common law

approach. B rowner

, 889 F.2d at 551-53. The offender’s mental

state is “not sufficiently culpable to meet the traditional malice

requirements [for murder]”; instead,

the requisite mental state is reduced to

“gross” or “criminal” negligence, a

culpability that is far more serious than

ordinary tort negligence but still falls short

of that most extreme recklessness and

wantonness required for “depraved heart”

malice.

Id

. at 53. For federal involuntary manslaughter, therefore, a jury

must find the defendant

(1) act[ed] with gross negligence, meaning a

wanton or reckless disregard for human life

, and (2) [had] knowledge that his or her

conduct was a threat to the life of another or

knowledge of such circumstances as could

reasonably have enabled the defendant to

foresee the peril to which his or her act

might subject another.14

Id

. (emphasi s added) (quoting U nited States v. Fesler

, 781 F.2d

384, 393 (5th Cir.), cert. denied , 476 U.S. 1118 (1986)).

The Uniform Code of Military Justice provides that ki lling

another by “culpable negligence” constitutes involuntary

manslaughter. 10 U.S.C. § 919(b). Such negligence is an “act or

omission accompanied by a culpable disregard for [its] foreseeable

consequences”. Manual for Courts-Martial, United States, p. IV-65,

¶ 44.c(2)(a)(i) (2002) (Appendix A). A defendant need not be

subjectively aware of the risk posed by his conduct in order to be

guilty of involuntary manslaughter under the statute. See United

States v. Oxendine

, 55 M.J. 323, 326 (2001) (quoting United States

v. Brown

, 22 M.J. 448, 450 (C.M.A. 1986) (accused need not “be

aware of the substantial risk he is creating, but only that a

reasonable person would have realized the risk”)).

At least 24 state statutes follow the Model Penal Code’s

definitions of recklessness and negligence. S ee, e.g., A LA

. C ODE §

13A-2-2; A LASKA S TAT

. § 11.81.900; A RIZ

. R EV

. S TAT

. A NN

. § 13-105; A RK

.

C ODE A NN

. § 5-2-202; C OLO

. R EV

. S TAT

. A NN . § 18-1-501. And at least

20 state criminal codes require a consciousness of risk, or

recklessness, for involuntary manslaughter. 2 L A F AVE

, § 15.4(a) 523

n.18; see, e.g., A LA

. C ODE § 13A-6-3; A LASKA S TAT

. § 11.41.120; A RIZ

.

R EV

. S TAT

. A NN

. § 13-1103; A RK

. C ODE A NN

. § 5 -10-104; C O LO

. R EV

. S TAT

.

A NN

. § 18-3-104. Fourteen States have codes with a single

manslaughter statute requiring recklessness. S ee, e.g., A LA

. C ODE15

§ 13A-6-3; A LASKA S TAT

. § 11.41.120; A RIZ

. R EV

. S TAT

. A NN

. § 13-1103;

A RK

. C ODE A NN

. § 5-10-104; C OLO

. R EV

. S TAT

. § 18-3-104(1)(a). Nineteen

States have criminal codes with a separate criminally negligent

homicide statute requiring negligence. S ee, e.g., A LA

. C ODE § 13A6-4; A LASKA S TAT

. § 11.41.130; A RIZ

. R EV

. S TAT

. A NN

. § 13-1102; A RK

. C ODE

A NN . § 5-10-105; C OLO

. R EV

. S TAT

. A NN . § 18-3-105. On the other

hand, approximately 13 state criminal codes “provide no clear

definition of the standard or else utilize a standard which at

least appears to be somewhat different than that in the Model Penal

Code”. 2 L A F AVE

, § 15.4(a) 523; see, e.g.

, C AL

. P ENAL C ODE § 192

(“without due caution and circumspect ion”); M I NN

. S TAT

. A NN

. §

609.205 (“culpable negligence”, under which it is sufficient that

rea sonable person would recognize strong probability of injury);

M ISS

. C ODE A NN

. § 97-3-47 (“culpable negligence”); P A

. C ONS

. S TAT

. A NN

.

tit. 18 § 2504 (“reckless or gross negligence”).

The Government cites case law from nine States supporting an

involuntary manslaughter mens rea lower than conscious disregard of

substantial risk, or recklessn ess. S ee, e.g., State v. Bennett

,

658 A.2d 1058, 1064 (Me. 1995) (permitting conviction for failure

to be aware of risk rises to gross deviation from standard); People

v. Jackson , 364 N.W. 2d 310, 311 (Mich. Ct. App. 1985) (gross

negligence does not require defen dant be personally aware of

danger; danger need only be “apparent to the ordinary mind”); State

v. Guilliot

, 22 P.3d 1266, 1272-73 & n.5 (Wash. Ct. App. 2001) (for16

second-degree manslaughter, criminally negligent defendant need not

be subjectively aware of risk).

Although some state codes incorporate common law definitions

of manslaughter, and a small minority of States have embraced a

possible criminal negligence mens rea for involuntary manslaughter,

the modern trend defines involuntary manslaughter as involving

recklessness. Accordingly, we hold that generic, contemporary

manslaughter (including involuntary manslaughter) requires a

recklessness mens rea

. Therefore, because criminally negligent

homicide under Texas law does not employ the recklessness mens rea

necessary for generic manslaughter, it is not its equivalent and is

not the subpart (II) enumerated manslaughter crime of violence.

III.

For the foregoing reasons, Dominguez’ conviction is AFFIRMED ;

h is sentence is V ACATED ; and this case is REMANDED for

resentencing.

AFFIRMED IN PART; VACATED IN PART; REMANDEDCHARLES W. PICKERING, SR., dissenting.

The majority correctly states that the issue in this case is whether for “Sentencing Guidelines

purposes, criminally negligent homicide under Texas law is equivalent to manslaughter and, therefore,

an enumerated crime of violence under Guidelines § 2L1.2.” Because I am persuaded that criminally

negligent homicide under Texas law is equivalent to manslaughter as set forth in Guidelines § 2L1.2,

I respectfully dissent.

The majority conc ludes that T aylor v. United States

, 495 U.S. 575 (1990), compels us to

examine other authorities (includi ng surveying the laws of all 50 states) to determine the generic

contemporary definition of manslaughter. I respectfully disagree. I think all that is necessary for us

to determine is what the drafters of the Guidelines meant when they used the word “manslaughter”

in § 2L1.2.

The Taylor case is distinguishable from this case in two respects. Fi rst, T aylor involved a

federal criminal statute, not the Guidelines. Secondly, Taylor involved determining the meaning of

the word “burglary” as used in the federal criminal statute, not the word “manslaughter” as used in

the Guidelines. In T

aylor the pet it ioner’s sentence had been enhanced because of a previous

conviction for burglary. T aylor

, 495 U.S. at 579. The petitioner argued that burglary as used in the

federal enhancement statute should be interpreted according to the common law. Id. at 596.

Since the common law was developed, the word “burglary” has undergone a much greater

transformat io n in meaning than has the word “manslaughter.” “Burglary” was defined by the

common law to be “the breaking and entering of the dwelling house of another in the nighttime with

the intent to commit a felony.” I d. at 582 n.3. The common and generic meaning of “burglary” today18

is the unlawful entry of any building, whether dwelling or business, whether in the nighttime or

daytime. I

d

. at 598. Some states have labeled criminal statutes involving illegal entry to automobiles,

boats, booths, tents, vessels, railroad car s, and vending machines as burglary, offenses that

traditionally were never considered as the crime of burglary. I d. at 599. C onsequently the definition

of burglary has undergone a tremendous transformation. At common law manslaughter was defined

as the unlawful killing of a human being without malice aforethought. Black’s Law Dictionary still

defines manslaughter as “[t]he unlawful killing of a human being without malice aforethought.”

B LACK ’ S L AW D ICTIONARY 976 (7th ed. 1999).

Over the years manslaughter was divided into involuntary and volunt ary manslaughter.

Generally, involuntary manslaughter has covered cases where death was not intended or foreseen, and

voluntary manslaughter has included all other homicides except those that constitute murder.

I perceive the correct solution is to determine what the writers of the Guidelines understood

the word “manslaughter” to mean. This was the approach taken by this court in U nited States v. Fry

,

51 F.3d 543 (5th Cir. 1995). Focusing on the intent of the Guidelines’ drafters, the court wrote that

“the drafters of the guidelines clearly indicated that manslaughter was to be considered a ‘crime of

vi o lence.’ Since the commentary to section 4B1.2 makes no distinction between voluntary and

involuntary manslaughter, we hold th a t both are included.” I d. at 546. Accordingly, it is not the

court’s responsibility to determine the generic meaning of manslaughter but to determine what the

authors of the Guidelines intended.

Reading other sections of Sentencing Guidelines that deal with manslaughter makes it clear

to me that the writers of the Gui delines understood involuntary manslaughter to include both19

criminally negligent and reckless conduct. Guidelines § 2A1.3 provides the base offense levels for

voluntary manslaughter. Guidelines § 2A1.4 provides:

Involuntary Manslaughter

(a) Base Offense Level:

(1) 10 , if the conduct was criminally negligent; or

(2) 14 , if the conduct was reckless.

U.S.S.G.§ 2A1.4 (2002).

When the Guidelines writers included the crime of manslaughter as an enumerated crime in

Guidelines § 2L1.2 subpart II, it did not differentiate between involuntary manslaughter and voluntary

manslaughter. As noted, the Fifth Circuit in F ry concluded that “manslaughter” includes both

“voluntary” and “involuntary manslaughter.” In fact, the parties agree that the term “manslaughter”

includes both “voluntary” and “involuntary manslaughter.” If the Guidelines writers had intended for

manslaughter to be limit

ed, they could easily have inserted the word “voluntary” in front of the word

“manslaughter” or inserted a parenthetical, “ involuntary manslaughter not included.” Instead, they

drew no distinctions. I see no reason for this Court to impose distinctions that the drafters did not.

The Guidelines clearly delineate involuntary manslaughter as including negligent homicide.

Since “mans laught er” includes both “voluntary” and “involuntary manslaughter,” and since

“involuntary manslaughter” is recognized by the Guidelines as including “negligent homicide,” our

inquiry should proceed no further.

The Sentencing Guidelines were intended to make sentencing easier and simpler, not more

complicated and difficult

. I know of no other court that has gone to the extent to survey the statutory

laws o f all 50 states in order to arrive at a consensus definition in a Guidelines case. Because I20

conclude that neither Taylor nor the Guidelines require such a survey, and because I think the

Guidelines themselves disclose the meaning intended by the Guidelines’ writers, I would affirm the

sentence. Accordingly, I respectfully dissent.